COMMISSIONER OF INTERNAL REVENUE, vs. HON. RAUL M.

GONZALEZ,
G.R. No. 177279 October 13, 2010

FACTS:
• Pursuant to Letter of Authority (LA) dated August 25, 2000, conducted a
fraud investigation for all internal revenue taxes to ascertain/determine the tax
liabilities of respondent L. M. Camus Engineering Corporation (LMCEC) for
the taxable years 1997, 1998 and 1999.
• The audit and investigation against LMCEC was precipitated by the
information provided by an "informer" that LMCEC had substantial
underdeclared income for the said period.
• For failure to comply with the subpoena duces tecum issued in connection
with the tax fraud investigation,
• a criminal complaint was instituted by the Bureau of Internal
Revenue (BIR) against LMCEC on January 19, 2001 for violation of Section
266 of the NIRC
• Based on data obtained from an "informer" and various clients of LMCEC, it was
discovered that LMCEC filed fraudulent tax returns with substantial
underdeclarations of taxable income for the years 1997, 1998 and 1999.
• Petitioner thus assessed the company of total deficiency taxes amounting to
P430,958,005.90 (income tax - P318,606,380.19 and value-added tax [VAT] -
P112,351,625.71) covering the said period.
• The Preliminary Assessment Notice (PAN) was received by LMCEC on
February 22, 2001.
• In view of the above findings, assessment notices together with a formal
letter of demand dated August 7, 2002 were sent to LMCEC through
personal service on October 1, 2002.
• Since the company and its representatives refused to receive the said
notices and demand letter, the revenue officers resorted to constructive
service in accordance with Section 3, Revenue Regulations (RR) No. 12-9911.
• On May 21, 2003, petitioner, referred to the Secretary of Justice for
preliminary investigation its complaint against LMCEC, Luis M. Camus and Lino
D. Mendoza, the latter two were sued in their capacities as President and
Comptroller, respectively.
• The case was docketed as I.S. No. 2003-774. In the Joint Affidavit executed by the
revenue officers who conducted the tax fraud investigation,
• it was alleged that despite the receipt of the final assessment notice and
formal demand letter on October 1, 2002, LMCEC failed and refused to pay
the deficiency tax assessment in the total amount of P630,164,631.61,
inclusive of increments, which had become final and executory as a
result of the said taxpayer’s failure to file a protest thereon within
the thirty (30)-day reglementary period.
• Camus and Mendoza filed a Joint Counter-Affidavit contending that LMCEC
cannot be held liable whatsoever for the alleged tax deficiency which had
become due and demandable. Considering that the complaint and its annexes all
 showed that the suit is a simple civil action for collection and not a tax
evasion case,
• LMCEC further averred that it had availed of the Bureau’s Tax Amnesty
Programs (Economic Recovery Assistance Payment [ERAP] Program and
the Voluntary Assessment Program [VAP]) for 1998 and 1999; for
1997, its tax liability was terminated and closed under Letter of
Termination
• LMCEC argued that petitioner is now estopped from further taking any
action against it and its corporate officers concerning the taxable years 1997
to 1999. With the grant of immunity from audit from the company’s
availment of ERAP and VAP, which have a feature of a tax amnesty,
the element of fraud is negated
• LMCEC further asserted that it filed on April 20, 2001 a protest on the
PAN issued by petitioner for having no basis in fact and law. However, until
now the said protest remains unresolved.
• In the Joint Reply-Affidavit executed by the Bureau’s revenue officers, petitioner
disagreed with the contention of LMCEC that the complaint filed is not
criminal in nature, pointing out that LMCEC and its officers Camus and Mendoza
were being charged for the criminal offenses defined and penalized under
Sections 254 (Attempt to Evade or Defeat Tax) and 255 (Willful Failure to Pay
Tax) of the NIRC.
• In this case, the BIR decided to simultaneously pursue both remedies and thus
aside from this criminal action, the Bureau also initiated administrative
proceedings against LMCEC.
• Petitioner stressed that LMCEC already lost its right to file a protest
letter after the lapse of the thirty (30)-day reglementary period.
LMCEC’s protest-letter dated December 12, 2002 to RDO Clavelina S. Nacar,
RD No. 40, Cubao, Quezon City was actually filed only on December 16,
2002, which was disregarded by the petitioner for being filed out of time.
• Petitioner further asserted that LMCEC’s claim that it was granted
immunity from audit when it availed of the VAP and ERAP programs
is misleading. LMCEC failed to state that its availment of ERAP under
RR No. 2-99 is not a grant of absolute immunity from audit and
investigation,
• Petitioner also pointed out that LMCEC’s assertion correlating this case
with I.S. No. 00-956 is misleading because said case involves another
violation and offense due to the failure of LMCEC to submit or
present its books of accounts and other accounting records for
examination despite the issuance of subpoena duces tecum against Camus
in his capacity as President of LMCEC. The determination of probable
cause in said case is confined to the issue of whether there was already a
violation of the NIRC by Camus in not complying with the subpoena
duces tecum issued by the BIR.

ISSUE: whether LMCEC and its corporate officers may be prosecuted for
violation of Sections 254 (Attempt to Evade or Defeat Tax) and 255 (Willful
Failure to Supply Correct and Accurate Information and Pay Tax).

HELD:
We grant the petition.
• There is no dispute that prior to the filing of the complaint with the DOJ,
the report on the tax fraud investigation conducted on LMCEC disclosed
that it made substantial underdeclarations in its income tax returns for
1997, 1998 and 1999.
• Pursuant to RR No. 12-99,38 a PAN was sent to and received by LMCEC on
February 22, 2001 wherein it was notified of the proposed assessment of
deficiency taxes. In response to said PAN, LMCEC sent a letter-protest to the TFD,
which denied the same on April 12, 2001 for lack of legal and factual basis and
also for having been filed beyond the 15-day reglementary period.
• As mentioned in the PAN, the revenue officers were not given the
opportunity to examine LMCEC’s books of accounts and other accounting
records because its officers failed to comply with the subpoena duces
tecum earlier issued, to verify its alleged underdeclarations of income reported
by the Bureau’s informant under Section 282 of the NIRC. Hence, a criminal
complaint was filed by the Bureau against private respondents for
violation of Section 266
• For the crime of tax evasion in particular, compliance by the taxpayer
with such subpoena, if any had been issued, is irrelevant. As we held in
Ungab v. Cusi, Jr.,41 "[t]he crime is complete when the [taxpayer] has x
x x knowingly and willfully filed [a] fraudulent [return] with intent to
evade and defeat x x x the tax."
• In the Details of Discrepancies attached as Annex B of the PAN,42 private
respondents were already notified that inasmuch as the revenue officers were
not given the opportunity to examine LMCEC’s books of accounts,
accounting records and other documents, said revenue officers gathered
information from third parties. Such procedure is authorized under
Section 5 of the NIRC,

Respondent Secretary, however, fully concurred with private respondents’ contention

that the assessment notices were invalid for being unnumbered and the tax
liabilities therein stated have already been settled and/or terminated.
• We do not agree.
• A notice of assessment is:
• [A] declaration of deficiency taxes issued to a [t]axpayer who fails to respond
to a Pre-Assessment Notice (PAN) within the prescribed period of time, or
whose reply to the PAN was found to be without merit.
• The Notice of Assessment shall inform the [t]axpayer of this fact, and that the
report of investigation submitted by the Revenue Officer conducting the audit
shall be given due course.
• The formal letter of demand calling for payment of the taxpayer’s deficiency
tax or taxes shall state the fact, the law, rules and regulations or
 jurisprudence on which the assessment is based, otherwise the
formal letter of demand and the notice of assessment shall be void.
• The formality of a control number in the assessment notice is not a
requirement for its validity but rather the contents thereof which should inform
the taxpayer of the declaration of deficiency tax against said taxpayer.
• The Formal Letter of Demand dated August 7, 2002 contains not only a detailed
computation of LMCEC’s tax deficiencies but also details of the specified
discrepancies, explaining the legal and factual bases of the assessment. It also
reiterated that in the absence of accounting records and other documents
necessary for the proper determination of the company’s internal revenue tax
liabilities, the investigating revenue officers resorted to the "Best Evidence
Obtainable" as provided in Section 6(B) of the NIRC (third party information)

Economic Recovery Assistance Payment (ERAP) Program

• The program named as "Economic Recovery Assistance Payment (ERAP)
Program" granted immunity from audit and investigation of income tax, VAT and
percentage tax returns for 1998.
• It expressly excluded withholding tax returns (whether for income, VAT, or
percentage tax purposes).
• Since such immunity from audit and investigation does not preclude the
collection of revenues generated from audit and enforcement activities,
it follows that the Bureau is likewise not barred from collecting any tax deficiency
discovered as a result of tax fraud investigations.
• Tax amnesty is a general pardon to taxpayers who want to start a clean
tax slate.
• It also gives the government a chance to collect uncollected tax from tax
evaders without having to go through the tedious process of a tax case.
• Even assuming arguendo that the issuance of RR No. 2-99 is in the nature of
tax amnesty, it bears noting that a tax amnesty, much like a tax exemption, is
never favored nor presumed in law and if granted by statute, the terms of the
amnesty like that of a tax exemption must be construed strictly against the
taxpayer and liberally in favor of the taxing authority.
• For the same reason, the availment by LMCEC of VAP under RR No. 8-2001
as amended by RR No. 10-2001, through payment supposedly made in October
29, 2001 before the said program ended on October 31, 2001, did not amount
to settlement of its assessed tax deficiencies for the period 1997 to
1999, nor immunity from prosecution for filing fraudulent return and
attempt to evade or defeat tax.
• As correctly asserted by petitioner, from the express terms of the aforesaid
revenue regulations, LMCEC is not qualified to avail of the VAP granting
taxpayers the privilege of last priority in the audit and investigation of
all internal revenue taxes for the taxable year 2000 and all prior years
under certain conditions, considering that
• first, it was issued a PAN on February 19, 2001, and
• second, it was the subject of investigation as a result of verified information
filed by a Tax Informer under Section 282 of the NIRC duly recorded in the BIR
 Official Registry as Confidential Information (CI) No. 29-200053 even prior to
the issuance of the PAN.
• Moreover, private respondents cannot invoke LMCEC’s availment of VAP
to foreclose any subsequent audit of its account books and other
accounting records in view of the strong finding of underdeclaration
in LMCEC’s payment of correct income tax liability by more than 30%

LMCEC -- the alleged violation of the general rule in Section 235 of the NIRC allowing
the examination and inspection of taxpayer’s books of accounts and other
accounting records only once in a taxable year –
• likewise untenable
• the discovery of substantial underdeclarations of income by LMCEC for
taxable years 1997, 1998 and 1999, as well as the necessity of obtaining
information from third parties to ascertain the correctness of the return filed or
evaluation of tax compliance in collecting taxes (as a result of the
disobedience to the summons issued by the Bureau against the private
respondents), are circumstances warranting exception from the general
rule in Section 235.

Consequently, respondent Secretary’s ruling that the filing of criminal

complaint for violation of Sections 254 and 255 of the NIRC cannot prosper
because of lack of prior determination of the existence of fraud, is bereft of factual
basis and contradicted by the evidence on record.
• Tax assessments by tax examiners are presumed correct and made in
good faith, and all presumptions are in favor of the correctness of a tax
assessment unless proven otherwise.
• We have held that a taxpayer’s failure to file a petition for review with the
Court of Tax Appeals within the statutory period rendered the disputed
assessment final, executory and demandable, thereby precluding it from
interposing the defenses of legality or validity of the assessment and prescription
of the Government’s right to assess.
• Indeed, any objection against the assessment should have been pursued
following the avenue paved in Section 229 (now Section 228) of the NIRC on
protests on assessments of internal revenue taxes.
• Records bear out that the assessment notice and Formal Letter of Demand
dated August 7, 2002 were duly served on LMCEC on October 1, 2002.
• Private respondents did not file a motion for reconsideration of the said
assessment notice and formal demand; neither did they appeal to the Court
of Tax Appeals.
• xxxxx assessment may be protested by filing a request for
reconsideration or reinvestigation within 30 days from receipt of the
assessment by the taxpayer.
• No such administrative protest was filed by private respondents seeking
reconsideration of the August 7, 2002 assessment notice and formal letter of
demand.
• Moreover, these objections to the assessments should have been raised,
 considering the ample remedies afforded the taxpayer by the Tax Code,
with the Bureau of Internal Revenue and the Court of Tax Appeals, as described
earlier, and cannot be raised now via Petition for Certiorari, under the
pretext of grave abuse of discretion.
• The subject tax assessments having become final, executory and enforceable, the
same can no longer be contested by means of a disguised protest.
• The determination of probable cause is part of the discretion granted to
the investigating prosecutor and ultimately, the Secretary of Justice.
• However, this Court and the CA possess the power to review findings
of prosecutors in preliminary investigations.
• Although policy considerations call for the widest latitude of deference to the
prosecutor’s findings, courts should never shirk from exercising their power,
when the circumstances warrant, to determine whether the prosecutor’s
findings are supported by the facts, or by the law.
• In so doing, courts do not act as prosecutors but as organs of the
judiciary, exercising their mandate under the Constitution, relevant
statutes, and remedial rules to settle cases and controversies.
• Clearly, the power of the Secretary of Justice to review does not
preclude this Court and the CA from intervening and exercising our
own powers of review with respect to the DOJ’s findings, such as in the
exceptional case in which grave abuse of discretion is committed, as when a
clear sufficiency or insufficiency of evidence to support a finding of probable
cause is ignored.